Delong v. County of Chautauqua

Mar 26, 2010
Appeal No. 1
Versions:71 A.D.3d 1580
896 N.Y.S.2d 917

KEVIN E. DELONG, Appellant, v COUNTY OF CHAUTAUQUA, Respondent/Third-Party Plaintiff. RHONDA DELONG, Third-Party Defendant-Respondent. (Appeal No. 1.) [896 NYS2d 917]—Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.), entered March 5, 2009 in a personal injury action. The order denied the motion of plaintiff to set aside the verdict.

It is hereby ordered that said appeal is unanimously dismissed without costs (see Smith v Catholic Med. Ctr. of Brooklyn & Queens, 155 AD2d 435 [1989]; see also CPLR 5501 [a] [1], [2]). Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.

KEVIN E. DELONG, Appellant, v COUNTY OF CHAUTAUQUA, Respondent/Third-Party Plaintiff. RHONDA DELONG, Third-Party Defendant-Respondent. (Appeal No. 2). [896 NYS2d 791]—Appeal from a judgment of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.), entered March 11, 2009 in a personal injury action. The judgment dismissed the complaint upon a jury verdict.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle in which he was a passenger skidded into a ditch on South Main Street Extension in the County of Chautauqua (defendant). According to plaintiff, defendant was negligent in, inter alia, constructing and maintaining the road and the shoulder and failing to warn of the dangerous condition of the road and the shoulder. Plaintiff appeals from a judgment entered upon a jury verdict finding that defendant was negligent but that its negligence was not a substantial factor in causing the accident. To the extent that plaintiff contends that Supreme Court erred in conflating the issues of negligence and proximate cause in its charge to the jury, we conclude that plaintiff waived that contention inasmuch as he requested a specified charge and the court gave that